test whether the plaintiff will prevail on the merits but instead tests whether the
claimant has properly stated a claim. See Pickrel v. City of Springfield, 45 F.3d 1115,
1118 (7th Cir. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In deciding
a motion to dismiss, the court will consider all well-pleaded allegations of the
complaint as true, and will draw all reasonable inferences in favor of the plaintiff.
Zinermon v. Burch, 494 U.S. 118, 118 (1990); Tobin for Governor v. Illinois State Bd.
of Elections, 268 F.3d 517, 521 (7th Cir. 2001). Dismissal is only proper if it appears
beyond doubt that plaintiff can prove no set of facts in support of his claim that would
entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Slaney v.
International Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001). The Seventh
Circuit has recognized, however, that a plaintiff may “plead himself out of court by
alleging facts which show that he has no claim.” Jackson v. Marion County, 66 F.3d
151, 153 (7th Cir. 1995). See Khuans v. School Dist. 110, 123 F.3d 1010, 1016-17 (7th
Cir. 1997).
B. Standard for First Amendment Retaliation Claim

To state a claim of retaliation against a public employee’s exercise of First
Amendment free speech rights, the public employee must show that 1) the implicated
speech was constitutionally protected under the circumstances, and 2) the defendant
retaliated against the speaker because of the speech. Button v. Kibby-Brown, 146 F.3d
526, 529 (7th Cir. 1998). A public employee’s speech will be constitutionally protected
if he speaks as a citizen on a matter of public concern, but not when he speaks as an
employee on a matter of personal interest. Connick v. Myers, 461 U.S. 138, 147 (1983).

If, and only if, the public employee’s speech addresses a matter of public concern, the

4


Summers, 226 F.3d 815, 820 (7th Cir. 2000).

It is settled law in the Seventh Circuit, however, that a complaint need not
allege all, or any of the facts entailed by the claim, and that a plaintiff can plead
conclusions. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000); Bennett
v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Bound as it is to draw all reasonable
inferences in favor of the party opposing the motion to dismiss, this court is unable to
conclude that Plaintiff has failed to state a cognizable claim.

CONCLUSION

For the reasons explained above, Defendants’ motion to dismiss (Doc. No. 8-1)
is denied. In the interest of expediting this matter, the court directs that the parties
proceed promptly to discovery on the issues of the role in which Plaintiff made the
statements at issue here, and the extent to which the Village’s responses to Plaintiffs

statements constituted retaliation.

ENTER:

Dated: November 29, 2001 (Revers MA pos y —
REBECCA R. PALLMEYERZ
United States Distric ‘dge



and Occupational Medical Clinic conducted an on-site evaluation of the Village fire
stations and examined 16 firefighters for symptoms possibly associated with high
levels of diesel exhaust in the stations. (id. 4 19.) On January 20, 2001, Plaintiff
submitted an IRMA Incident/First Aid Report documenting symptoms that he was
experiencing as a result of exposure to the diesel exhaust levels mentioned in his
September 20, 2000 and October 7, 2000 memoranda.’ (Id. { 20.) On an unspecified
date, Defendant Jarvis refused to accept Plaintiff's January 20, 2001 IRMA report, and
claimed that Plaintiff failed to properly complete the Report form. (d.) The complaint
does not explain why Jarvis believed the Report was not properly completed, and
Plaintiff alleges that this justification is pretextual. (Id.) On January 25, 2001,
Defendant Jarvis warned Plaintiff verbally that all Departmental paperwork including
IRMA Incident/First Aid Forms had to be properly completed, and that failure to
comply with this warning could result in further discipline up to and including
termination. (Id. { 22.) The Defendants neither acknowledged nor officially accepted
Plaintiff's January 20, 2001 IRMA report, and failed to take any action to address the
symptoms which Plaintiffidentified as deriving from unhealthy workplace conditions.
(Id. | 23.)
Plaintiff filed the complaint initiating this action on May 24, 2001.
DISCUSSION
A. Standard for a Motion to Dismiss

A motion to dismiss a complaint pursuant to FED. R. Civ. P. 12(b)(6) does not

‘ The complaint does not explain what the acronym “IRMA” stands for, nor
does it identify the symptoms Plaintiff was allegedly experiencing.

3


court must then weigh the plaintiff's interests as a citizen “in commenting upon
matters of public concern” against “the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.”
Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 568, 568 (1968).
Courts applying the Connick-Pickering test must do more than consider the general
subject matter of speech and “must... delve deeper into the precise content, form, and
context of the speech that admittedly may be of some interest to the public.” Cliff v.
Board of Sch. Comm’rs of Indianapolis, 42 F.3d 408, 410 (7th Cir. 1994). The fact that
a public employee speaks out on a topic of public import does not automatically protect
the remarks he made; at the same time, the fact that the public speaks out partially
for personal] reasons does not necessarily deny the employee Constitutional protections
either. Gonzalez v. City of Chicago, 239 F.3d 939, 941-42 (7th Cir. 2001); Kokkinis v.
Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999).
Cc. Plaintiffs First Amendment Concerns

With these standards in mind, the court turns to the case at hand. Defendant
contends that Plaintiffs claim must be dismissed because the speech in question was
uttered in a professional context by a public employee whose job it was to report on
health and safety conditions in Village fire stations. As the preceding summary of facts
may begin to suggest, however, Plaintiffs Complaint is somewhat short on details.
Thus, it is difficult for the court to determine the “precise content, form, and context”
ofthe memoranda that Plaintiff allegedly submitted. It is unclear what the documents
meant, whether they were optional or required, formal or informal, and so on.

Similarly, without more information, the court would be ill-equipped to assess whether


Minute Order Form (06/97)

United States District Court, Northern District of Minois

a
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Rebe pg. Palimeyer than Assigned Judge
CASE NUMBER Nor C 3842 DATE 11/29/2001
CASE Frank Richter vs. Village of Oak Brook, et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) oO Answer brief to motion due. . Reply to answer brief due.

(4) Oo Ruling/Hearing on set for at

(5) a Status hearing[held/continued to] [set for/re-set for] on__ set for at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at

(7) a Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) (General Rule21 CFRCP41(a\(1) C1 FRCP41(a)(2).

(lo) «6 [Other docket entry] | Enter Memorandum Opinion And Order. Defendants’ motion to dismiss
(Doc. 8-1) is denied. In the interest of expediting this matter, the court directs that the parties proceed
promptly to discovery on the issues of the role in which Plaintiff made the statements at issue here, and
the extent to which the Village’s responses to Plaintiff's statements constituted retaliation.

a1) @ [For further detail see order attached to the original minute order.}

No notices required, advised in open court. Document
2 Number
No notlees required. umber of notices
Y | Notices mailed by judge’s staff. DES -3 2001
Notified counsel by telephone, ‘te docketed
Docketing to mail notices.
©
Mail AO 450 form, * docketing deputy initials
Copy to judge/magistrate judge. 1g
Hins00t
courtroom UL ROY 30 FILE date mailed notice
ETV deputy’s
initials
Date/time received in
central Clerk's Office mailing deputy initials



or not Plaintiff spoke primarily as a citizen or a public employee when he raised
concerns about the air quality at Village fire stations. The court notes, however, that
Plaintiff comes close to pleading himself out of court on this very point. His allegation
that his duties as Chief Union Steward for the Village “involved health and safety
oversight at the Department . . . at all times” fits uncomfortably, at best, with an
argument that his speech was that of a citizen and not a public employee. See
Complaint { 14.

In addition, although the parties have not addressed the issue, the court notes
a concern regarding the nature of the alleged retaliation. The complaint alleges that
Plaintiff was dropped from the Department Safety Committee, had a memo rejected
by Defendant Jarvis, and was warned that improperly submitted memoranda could
lead to Departmental discipline or firing. See id. (17, 21-24. In the context of First
Amendment challenges to employment actions, the challenged adverse acts need not
be “monstrous”; instead, the acts “need merely create the potential for chilling
employee speech on matters of public concern.” DeGuiseppe v. Village of Bellwood, 68
F.3d 187, 192 (7th Cir. 1995). To be actionable, however, the challenged employer
actions must be more disruptive than an inconvenience or change of professional
responsibilities. Id. Plaintiff must be “made worse off” by the challenged actions. Id.
Cf. Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691 (7th Cir. 2001) (in Title VII
context, “not everything that makes an employee unhappy is an actionable adverse
action”) (quoting Smart v. Ball State University, 89 F.3d 487 (7th Cir. 1996)).
Plaintiff's case can not long survive without evidence of an employment action adverse

enough to effectively deter the exercise of his First Amendment rights. Power v.

6


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION grnere®
23 2004

FRANK RICHTER, DEG

Plaintiff,

v. No. 01 C 3842
VILLAGE OF OAK BROOK,
VILLAGE MANAGER STEPHEN
VEITCH, and FIRE CHIEF DEBRA
JARVIS, individually and in their
official capacities,

Judge Rebecca R. Pallmeyer

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Frank Richter (“Richter”), a fireman, brings this action against his
employer, the Village of Oak Brook (“the Village”), and individual defendants Stephen
Veitch (“Veitch”), the Village Manager, and Debra Jarvis (“Jarvis”), the Village Fire
Chief. Richter alleges that the Defendants have violated his First and Fourteenth
Amendment right as a public employee to speak about matters of public concern by
retaliating against him for criticizing health conditions within several Village
firehouses. Defendants now move to dismiss the case for failure to state a claim and
contend in the alternative that the individual defendants enjoy qualified immunity
against Plaintiff's claim. For the reasons stated below, Defendants’ motion to dismiss
is denied.

FACTUAL BACKGROUND

Plaintiff is employed as a fireman by the Village Fire Department (‘the


Department”).’ (Complaint {] 14, 24.) In January 2000, he became a member of the
Department’s Safety Committee and he also served as the Department’s Chief Union
Steward with duties involving the oversight of departmental health and safety.” (Id.
{| 13, 14.) On September 20, 2000, Plaintiff submitted a written memorandum to
Defendants Jarvis and Veitch, alerting them that several Village fire stations had
contaminants such as asbestos and high levels of mold and particulate diesel exhaust.®
Ud. 4 15.) On October 7, 2000, Plaintiff gave Jarvis a second memo expressing
concern about Village firefighters’ exposure to the contaminants in Village fire stations,
and recommending that a qualified testing agency be retained to evaluate the fire
stations and determine an appropriate course of action. (Id. J 16.) On an unspecified
date in November 2000, Defendant Jarvis removed Plaintiff from the Department
Safety Committee. (Id. { 17.)

On a date not specified in the complaint, Plaintiff contacted the Department of
Health and Human Services, OSHA, NIOSH, and the Illinois Department of Labor in
an effort to obtain an evaluation of the levels of diesel exhaust, mold, and asbestos in
the fire stations. (id. J 18.) Allegedly as a result of Plaintiffs efforts, on another

unspecified date the University of Illinois at Chicago’s Industrial Hygiene Department

' The complaint does not indicate when Plaintiff was hired by the
Department.

2 The complaint specifies that Plaintiff fulfilled these responsibilities
concurrently but does not indicate when he became Chief Union Steward or whether
he still holds this position.

8 The complaint alleges that the asbestos was present in Village Fire
Station Two, but does not specify how many fire stations the Village manages, which
fire stations had problems with which contaminants, or which fire stations were
subsequently tested for contaminants.